iIn a Supreme Court term featuring noteworthy decisions on marriage rights, affirmative action and voting rights, it would be easy to overlook two important decisions that will influence the way employers litigate Title VII cases.
In Vance v. Ball State University, the Court considered the definition of "supervisor" for purposes of holding employers strictly liable for the actions of certain supervisors in Title VII actions. Vance, an African-American employee in the catering department at Ball State, claimed that a co-worker created a racially hostile work environment for her. She alleged that Ball State was liable for the conduct despite the fact that she never complained because the co-worker should be considered to be a supervisor by virtue of the fact that the co-worker sometimes led or directed Vance and other employees in the kitchen. Vance relied on guidance issued by the EEOC, which provides that a supervisor is someone who wields authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." Both the district court and the Seventh Circuit Court of Appeals rejected that theory.
Justice Alito, writing for a 5-4 majority of the Court, affirmed the decision in favor of Ball State, explaining that a supervisor, for purposes of vicarious liability under Title VII, must have the power to take tangible employment actions – including hiring, firing, promoting, reassigning significantly different tasks or causing benefit changes. Day-to-day direction is not sufficient. The Court derided the EEOC's definition of supervisor as a "study in ambiguity." Referencing its prior decisions in Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court noted that a supervisor is a distinct class of agent that has the power to cause "direct economic harm."
The Vance decision makes it easier for judges to determine as a matter of law on summary judgment whether someone is a supervisor. If the court determines that the harasser is not a supervisor, it removes any strict liability claim from the case and forces the plaintiff to prove that the employer was negligent in failing to prevent or correct the alleged harassment. The decision may also enable employers to reduce the amount of time spent at trial having to establish or rebut claims regarding an individual actor's supervisory status. Establishing supervisory responsibility early in the case should also facilitate discussions concerning resolution or dismissal of actions.
In University of Texas Southwestern Medical Center v. Nassar, meanwhile, the Court examined the standard required for proving what caused the alleged adverse employment action in a Title VII retaliation claim.
Nassar, a physician of Middle Eastern descent, claimed ethnic and religious discrimination by his supervisor. He also claimed that the University retaliated against him by preventing his hiring by a hospital that was associated with the University after he complained about the harassment and quit his job. The trial judge allowed Nassar to argue that retaliation for his complaint about discrimination was simply a motivating factor in the University's decision not to let him work at the hospital, and a jury found for Nassar on both claims. On appeal, the Fifth Circuit affirmed the retaliation finding on the theory that such claims require a showing only that retaliation was a motivating factor for the adverse employment action – the proof standard set forth in section 2000e-2(m) of Title VII. Courts across the country were divided on which standard should apply.
The Court, in a 5-4 opinion authored by Justice Kennedy, held that retaliation claims must be proven based on traditional "but-for" causation, and not the lesser standard in 2000e-2(m). The Court pointed to the fact that the Civil Rights Act of 1991 amended Title VII's proof framework in adopting 2000e-2(m), which provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The Court discussed how Congress specifically limited that language to status claims and omitted retaliation. Had Congress meant to exempt retaliation claims from the traditional "but-for" causation standard, it would have included it in 2000e-2(m).
Employers will likely find greater success defending against retaliation claims going forward given the requirement that retaliation be the sole reason for the action, not a mere motivating factor. Likewise, the increased likelihood of summary judgment should enable employers to more aggressively pursue early resolution strategies, if desired.
